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Judge Stewart Rules on Novell's Motions: No and Mostly No - Updated |
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Thursday, January 28 2010 @ 05:41 PM EST
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Well, here we go. The new judge in the redo of SCO v. Novell, the Hon. Ted Stewart, has issued his decision on the two Novell summary judgment motions, and I've only skimmed them, but it looks like if it's Novell, he says mostly no and if it favors SCO he says yes, which is what I expected. That means the hearing set for February 4 has been cancelled. No oral argument. Weird. And he ruled on a motion that I don't see anyone asking him to decide.
Here's the Memorandum Decision and Order Denying Novell's Rule 60(b) Motion for Relief from Final Judgment [PDF]. Here's Rule 60(b).
He says they should have appealed the matter. That's the motion about the money from Microsoft and the other SCOsource licensees.
Then here's the
Memorandum Decision and Order Granting in Part and Denying in Part Novell's Motion for Summary Judgment on SCO's First Claim for Slander of Title Based on Failure to Establish Special Damages [PDF]. That's the motion mooted when Novell won another summary judgment motion in August of 2007. The latter just means that it has to go to trial, not that there is a final decision. But if you don't mind me asking, who asked the court to rule on this motion? But it's still odd on first reading, in that SCO did mention slander of title in its appeal brief, but I don't remember the appeals court saying that was overturned. Here's all I see SCO saying about that topic in its brief: B. Novell's Slander of Title.
On May 28, 2003, the day on which SCO announced its quarterly earnings and a few weeks after SCO had sued IBM over violations of its Software and Sublicensing Agreements, Novell publicly claimed that it — not SCO — owned the UNIX copyrights, an assertion that Novell had not made in any context since signing the APA more than seven years earlier. (05875;10026;04695;05896.) In an open letter published on its website, Novell CEO Jack Messman described Novell as "an ardent supporter of Linux" and asserted that "SCO is not the owner of the UNIX copyrights." (05874-75.)
Nine days later, after SCO had faxed a copy of Amendment No. 2 to Mr. Messman, Novell immediately issued a press release, admitting:
Amendment #2 to the 1995 SCO-Novell Asset Purchase Agreement was sent to Novell last night by SCO. To Novell's knowledge, this amendment is not present in Novell's files. The amendment appears to support SCO's claims that ownership of certain copyrights for UNIX did transfer to SCO in 1996.
(05889 (emphasis added).) Novell has admitted that it had made its initial announcement without considering the APA as amended by Amendment No. 2 and without consulting the people who had negotiated the APA or its amendments. (05895-96.) Novell subsequently sought to retract the retraction, and stated that
Amendment No. 2 "raises as many questions about copyright transfers as it answers." (07895.)
Within two hours of Novell's public claim that it owns the UNIX copyrights, SCO's stock plummeted, even though SCO had announced record revenues that day. (13137-38¶¶6-9.) In discovery, SCO learned that the timing of Novell's announcement was not "entirely coincidental," as Mr. Messman had claimed. (13800;10025-26;10029.) Novell Vice Chairman Chris Stone had informed Maureen O'Gara, a journalist who has covered the computer industry since 1972, that Novell intentionally was making the announcement on the day of SCO's earnings report to "confound SCO's stock position" and "upset the stock price." (10025-26;10029.) According to her testimony, Mr. Stone leaked this information "with laughter" and "chortling." (10029.)
Novell's claim that Amendment No. 2 was "not present in Novell's files" also proved to be false. Mr. Messman later admitted that a signed copy of Amendment No. 2 had been present in Novell's files all along, and that Novell had published its initial ownership claims knowing that it had, at least, an unsigned copy of the Amendment. (09379.)
But Judge Stewart has just ruled that a dip in stock value isn't special damages. And here's what SCO asked to appeal, and I don't see one word about slander of title:For the foregoing reasons, SCO respectfully requests that the Court reverse the district court's summary judgment rulings that (1) Santa Cruz did not acquire the UNIX and UnixWare copyrights under the APA; (2) in the alternative, SCO is not entitled to specific performance, requiring the transfer of those copyrights now; (3) Novell has the right under the APA to force SCO to waive claims against IBM for its breach of UNIX Software and Sublicensing Agreements; (4) Novell is not required to comply with the covenant of good faith and fair dealing in exercising its 4.16(b) rights under the APA; and (5) Novell is entitled to royalties from post-APA licenses related to SVRX, including the Sun Agreement, and that the Court remand the case for further proceedings consistent with its decision.10 Judge Kimball said that even if SCO did own the copyrights, Novell still wasn't guilty of slander of title. So I don't quite see how SCO could later ask for any damages, no matter what happens. I'll double check, and I'll swing back by after I have a chance to read them more carefully.
Update: Here's what Judge Kimball wrote, and my memory was correct:
SCO's motion for summary judgment on copyright ownership is brought with respect to its First Claim for Relief for slander of title, its Second Claim For Relief for breach contract, its Fifth Claim for Relief for unfair competition, and Novell's First Claim for Relief for slander of title. SCO's motion for partial summary judgment on its own claims is denied. SCO's motion with respect to Novell's slander of title claim focuses only on the title/ownership issue. A slander of title claim involves a false statement disparaging title, that is made with malice and
that causes actual or special damages. First Sec. Bank of Utah, 780 P.2d at 1256-57. Because SCO has not moved on the elements of malice or special damages, the court has no present basis for dismissing Novell's claim. Accordingly, the court denies SCO's motion for summary judgment on the Novell's slander of title claim.
II. Novell's Summary Judgment Motions on Special Damages and the Copyright Ownership Portions of SCO's Unfair Competition Claim and Breach of Implied Covenant
Novell's motion for summary judgment on SCO's slander of title claim for failure to establish special damages is now moot because the claim has been dismissed on other grounds. Novell is also entitled to summary judgment on the copyright ownership portion of SCO's unfair competition and implied covenant of good faith claims because SCO cannot establish that Novell's assertion that it owns the UNIX and UnixWare copyrights was false.
Even if the court had found that SCO owned the copyrights, Novell would still be entitled to summary judgment on the copyright ownership portions of SCO's claims of unfair competition and breach of the implied covenant of good faith and fair dealing....
Even if this court had ruled in SCO's favor on the copyright ownership issue, there is no evidence to demonstrate that Novell's position was contrary to its own understanding of the contractual language or objectively unreasonable given the history of the dispute between the parties. See what I mean? So, where are the possible damages? Here's the appeals court decision, so you can also check it. Here's what was remanded for trial: VI. Conclusion
For the foregoing reasons, we AFFIRM the district court's judgment with regards to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE the district court's entry of summary judgment on (1) the ownership of the UNIX and UnixWare copyrights; (2) SCO's claim seeking specific performance; (3) the scope of Novell's rights under Section 4.16 of the APA; (4) the application of the covenant of good faith and fair dealing to Novell's rights under Section 4.16 of the APA. On these issues, we REMAND for trial. Anybody see anything about slander of title? And there is this footnote:1 The district court also issued a number of rulings regarding specific arguments made in support of both parties' claims and counterclaims. To the extent that those rulings do not directly affect the substance of this appeal, we do not address them. Maybe oral argument would have helped. It could be me, but from all I'm seeing so far, I think the judge simply goofed. He's new, and it's a very complicated case, but I think he thinks the slander of title claim was also remanded.
If I'm right, we can expect Novell to bring a motion to reconsider or some reasonable facsimile. An appeal is also possible.
[ Update: I believe I am right that he thinks the slander of title claim is still to be litigated. He writes: Defendant seeks summary judgment on Plaintiff's claim for slander of title....
Here, both the issue of ownership of title and slander of title will be decided in
this action.
But that's not the case, as I understand it. This motion was about special damages, and the weird part is I don't see anyone asking him to rule on this. And what I see in the appeals court ruling is about the covenant of good faith and fair dealing, not slander of title. The motion for summary judgment on the claim itself was already won long ago. And while our eyewitnesses heard the lawyers at the last status hearing talking with the clerk about a possible motion from Novell on no malice regarding the slander of title claim, they never filed any, and this motion, #277, isn't about no malice. So how exactly does this get back on the table with no one asking for it to be there? On the other hand, let's assume that I'm wrong, and that the slander of title claim is going to trial and I just don't realize it. Then what? Then it would mean that SCO gets to relitigate its issues, but without Novell having the same opportunity, and with a judge referencing words from Darl McBride as if that established reality. On the plus side, because Judge Stewart ruled that a dip in the stock price isn't special damages, it means MOG won't be testifying to that nonsense she was ready to testify about. But what it means in the big picture is that SCO, or more likely the financial backers of this push, would like to get from Novell money it claims it would have gotten from SCOsource licensees, had Novell not made its claim to own the copyrights. I have concluded that they just want money, and they don't much care how they get it or from whom, as long as they get it. It all
reinforces, to me, Novell's other request, that the court put the IBM and Novell cases together under the new judge handling the IBM case. This case is too complicated. The rulings also do nothing to clear the air with respect to the feelings among many that this particular judge has too close ties to Senator Orrin Hatch, father of SCO's attorney, Brent Hatch, to be able to avoid bias, conscious or not. Fasten your seat belts, ladies and gentlemen. We're in for a bumpy flight.]
Here's the docket:
01/28/2010 - 620 - MEMORANDUM DECISION denying 608 Motion to Set Aside Judgment. Signed by Judge Ted Stewart on 01/28/2010. (asp) (Entered: 01/28/2010)
01/28/2010 - 621 - MEMORANDUM DECISION granting in part and denying in part 277 Motion for Summary Judgment ; The hearing set for February 4, 2010, is STRICKEN. Signed by Judge Ted Stewart on 01/28/2010. (asp) (Entered: 01/28/2010)
Here are the reasons Novell listed in its long-ago, mooted and now resurrected motion that was just decided, as to why SCO had failed to establish special damages:Special damages are “out-of-pocket losses” that must be the “direct and immediate” result of the slander of title. Special damages must also consist of “a realized or liquidated” pecuniary loss. SCO cannot meet its burden of establishing special damages on the following grounds:
First, SCO’s allegation that its SCOsource licensing program was harmed by Novell’s assertion of rights does not support a claim for special damages as a matter of law. Given the evidence SCO has put forward demonstrating public skepticism regarding its infringement claim, SCO cannot establish that any failure of its licensing program “resulted from” the alleged slander and not some other cause. Moreover, SCO cannot establish that it was harmed by Novell’s assertion of ownership because if the alleged “cloud” on its title is removed, SCO will remain in possession of the copyrights and will be able to pursue any legitimate claim to royalties. SCO cannot support a claim for special damages based on the present failure of its licensing program as a matter of law.
Second, SCO’s allegation that Novell’s statements hurt SCO’s stock price states a claim that has been repeatedly rejected as the basis for a claim for special damages. Harm to a plaintiff’s stock price is not the “direct and immediate” result of a slander, and it is not a “realized or liquidated” pecuniary loss and cannot support a claim for special damages as a matter of law.
Third, SCO’s assertion that it is entitled to attorneys fees to clear its title in this action is a claim that has been rejected in this Court and others around the country, and cannot be sustained as a matter of law.
Fourth, SCO has not produced any evidence of any pecuniary loss based on its efforts to research and pursue copyright registration, or to counter Novell’s statements with its customers. SCO cannot support its burden of showing special damages because it has failed to meet its evidentiary burden.
For all of the above reasons, Novell is entitled to summary judgment on SCO’s slander of title claim on the grounds that SCO cannot establish special damages. These are the points the judge goes through point by point, but he doesn't mention at all the fact that Judge Kimball said no matter what, SCO could not prevail on its slander of title claims. Like I say, oral argument probably would have helped. Depending on what one's goals are, I suppose.We have updated our Transcripts page, so it's easier to find things. We'll be adding a section next on Orders, to help everyone keep track of it all. And to help you follow along as to what the motion about slander of title damages was about, or was supposed to be about, here are the briefs, all PDFs:
Update: I couldn't help but notice something in Justice J. Stevens' dissent in the recently decided [PDF] case, United v. Federal Election Commission. I normally don't mention cases that are not about copyright, patents or whatever, and Groklaw doesn't cover politics or get involved in politics, but his dissent is happily useful in explaining to you that courts normally, including the Supreme Court itself, won't decide a matter not properly brought before it. His dissenting opinion begins on page 91, like this:
The Court’s ruling threatens to undermine the integrity of elected institutions across the Nation. The path it has taken to reach its outcome will, I fear, do damage to this institution. Before turning to the question whether to overrule Austin and part of McConnell, it is important to explain why the Court should not be deciding that question. Scope of the Case The first reason is that the question was not properly brought before us. In declaring §203 of BCRA facially unconstitutional on the ground that corporations’ electoral expenditures may not be regulated any more stringently than those of individuals, the majority decides this case on a basis relinquished below, not included in the questions presented to us by the litigants, and argued here only in response to the Court’s invitation. This procedure is unusual and inadvisable for a court.2 Our colleagues’ suggestion that “we are asked to reconsider Austin and, in effect, McConnell,” ante, at 1, would be more accurate if rephrased to state that “we have asked ourselves” to re consider those cases.
2 See Yee v. Escondido, 503 U. S. 519, 535 (1992) (“[U]nder this Court’s Rule 14.1(a), only questions set forth in the petition, or fairly included therein, will be considered by the Court” (internal quotation marks and alteration omitted)); Wood v. Allen, ante, at __ (slip op., at 13) (“[T]he fact that petitioner discussed [an] issue in the text of his petition for certiorari does not bring it before us. Rule 14.1(a) requires that a subsidiary question be fairly included in the question presented for our review” (internal quotation marks and brackets omitted)); Cooper Industries, Inc. v. Aviall Services, Inc., 543 U. S. 157, 168–169 (2004) (“We ordinarily do not decide in the first instance issues not decided below” (internal quotation marks omitted)).
That's how it's supposed to work. Evidently Justice Stevens feels that isn't how it worked in that case. And to be real about the courts, there are wrongly decided cases all the time, all up and down the chain. People do their best, and that still happens, and it will always still happen. It's the human condition. But his words should should help you to understand the depths of my puzzlement about Judge Stewart deciding a motion that I see no record of anyone bringing before him to decide, and without any oral argument despite the suddenly changed circumstances since the motion was briefed, on an issue that as far as I can see SCO didn't raise on appeal and which the appeals court seems to have let stand. I'll stay tuned for later developments and explanations, and if I'm all wet on this point, I will tell you that too. There may be an explanation I just don't see. I'm only human too, after all. But with the information we have publicly available, I just don't see how this can be right.
Update: And look at what Judge Stewart wrote about Novell wanting to litigate the issue of the SCOsource money: Here, the argument raised by Defendant in its Motion could have, and should have, been raised on appeal. Defendant could have easily argued to the Tenth Circuit that, if this Court's decision concerning the ownership of the copyrights was reversed, the decision concerning royalties should similarly be reversed. They did not. The Court cannot ignore Defendant's decision not to address this issue on appeal. But my point is, SCO didn't raise the slander of title issue on appeal either, as I read it. So what's good for the goose should be good for the gander.And here is the order on the Rule 60(b) motion, as text, and I'll add the other one as soon as I have it done - it's done:
****************************************
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff and Counterclaim Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim Plaintiff.
________________________________
Case No. 2:04-CV-139 TS
MEMORANDUM DECISION AND ORDER DENYING NOVELL'S
RULE 60(b) MOTION FOR RELIEF
FROM FINAL JUDGMENT
____________________________________
This matter is before the Court on Novell's Rule 60(b) Motion for Relief from Final
Judgment. Defendant asks this Court to set aside the Judgment as it relates to the Court's finding
that Novell was not entitled to royalties from certain licenses because those licenses were not
SVRX licenses. Defendant argues that this conclusion rested on the Court's prior conclusion that
Plaintiff did not own the copyrights at issue. As that decision has now been reversed, Defendant
argues that the decision relating to the royalties must also be reversed. Plaintiff argues that
Defendant's Motion is barred by the mandate rule, is not permitted under Rule 60, and fails on
the merits. The Court agrees that Defendant's Motion is barred by the mandate rule and, for the
reasons discussed below, the Court will deny Defendant's Motion.
1
I. BACKGROUND
As the Tenth Circuit stated:
This case primarily involves a dispute between SCO and Novell regarding the
scope of intellectual property in certain UNIX and UnixWare technology and
other rights retained by Novell following the sale of part of its UNIX business to
Santa Cruz, a predecessor corporate entity to SCO, in the mid-1990s.1
Both parties claim that they are the rightful owner the UNIX and UnixWare copyrights. Pursuant
to the Tenth Circuit's decision, that issue will be for the jury to decide.
Defendant now seeks to set aside this Court's previous decision concerning Defendant's
entitlement to certain royalties. Defendant argues that Judge Kimball's decision concerning
those royalties was premised on the decision that it, not Plaintiff, was the owner of the copyrights
at issue. Because that decision has now been reversed, Defendant seeks relief from Judge
Kimball's decision on the issue of royalties.
Defendant did not raise this issue on appeal. The Tenth Circuit's mandate states:
For the foregoing reasons, we AFFIRM the district court's judgment with regards
to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE
the district court's entry of summary judgment on (1) the ownership of the UNIX
and UnixWare copyrights; (2) SCO's claim seeking specific performance; (3) the
scope of Novell's rights under Section 4.16 of the APA; (4) the application of the
covenant of good faith and fair dealing to Novell's rights under Section 4.16 of
the APA. On these issues, we REMAND for trial.2
II. DISCUSSION
The mandate rule is an "important corollary" to the law of the case doctrine.3"The
mandate rule is a 'discretion-guiding rule' that 'generally requires trial court conformity with the
2
articulated appellate remand,' subject to certain recognized exceptions."4 The mandate rule
"provides that a district court must comply strictly with the mandate rendered by the reviewing
court."5While "a district court is bound to follow the mandate, and the mandate 'controls all
matters within its scope, . . . a district court on remand is free to pass upon any issue which was
not expressly or impliedly disposed of on appeal.'"6 However, the mandate rule prevents a court
from considering an argument that could have been, but was not, made on appeal.7
3
Here, the argument raised by Defendant in its Motion could have, and should have, been
raised on appeal. Defendant could have easily argued to the Tenth Circuit that, if this Court's
decision concerning the ownership of the copyrights was reversed, the decision concerning
royalties should similarly be reversed. They did not. The Court cannot ignore Defendant's
decision not to address this issue on appeal.
Further, the Court must take into consideration the limited nature of the mandate. As set
forth above, that mandate is as follows:
For the foregoing reasons, we AFFIRM the district court's judgment with regards
to the royalties due Novell under the 2003 Sun-SCO Agreement, but REVERSE
the district court's entry of summary judgment on (1) the ownership of the UNIX
and UnixWare copyrights; (2) SCO's claim seeking specific performance; (3) the
scope of Novell's rights under Section 4.16 of the APA; (4) the application of the
covenant of good faith and fair dealing to Novell's rights under Section 4.16 of
the APA. On these issues, we REMAND for trial.8
This is not a general mandate.9The mandate is very specific. The Tenth Circuit has remanded
this matter to the Court for trial on those four specific issues identified in the mandate. Because
of the specific nature of the mandate, the Court is not free to explore matters outside of it. Even
if the Court could do so, the Court is not inclined to allow the parties to litigate this case anew.
"[A] district court may deviate from the mandate `under exceptional circumstances,
including (1) a dramatic change in controlling legal authority; (2) significant new evidence that
was not earlier obtainable through due diligence but has since come to light; or (3) if blatant error
4
from the prior . . . decision would result in serious injustice if uncorrected.'"10 None of these
circumstances are present here.
The Court further finds that those cases cited by Defendant are unconvincing in that they
are dissimilar to the facts presented here and/or do not apply the mandate rule as adopted in the
Tenth Circuit.
It is therefore
ORDERED that Novell's Rule 60(b) Motion for Relief from Final Judgment (Docket No.
608) is DENIED. The hearing set for February 4, 2010, is STRICKEN.
DATED January 28, 2010.
BY THE COURT:
___[signature]______
TED STEWART
United States District Judge
5
1
The SCO Group, Inc. v. Novell, Inc., 578 F.3d 1201, 1204 (10th Cir. 2009).
2
Id. at 1227.
3
Huffman v. Saul Holdings Ltd. P'ship, 262 F.3d 1128, 1132 (10th Cir. 2001).
4
United States v. Hicks, 146 F.3d 1198, 1200 (10th Cir. 1998) (quoting United States v.
Moore, 83 F.3d 1231, 1234 (10th Cir. 1996)).
5
Huffman, 262 F.3d at 1132 (quotation marks and citation omitted).
6
Procter & Gamble Co. v. Haugen, 317 F.3d 1121, 1126 (10th Cir. 2003) (quoting
Newball v. Offshore Logistics Int'l, 803 F.2d 821, 826 (5th Cir. 1986)).
7
United States v. Webb, 98 F.3d 585, 589 (10th Cir. 1996) (noting that because an issue
was not appealed the district court's ruling became final and court did not err in declining to
address it on remand); see also Doe v. Chao, 511 F.3d 461, 465 (4th Cir. 2007) (stating that "any
issue that could have been but was not raised on appeal is waived and thus not remanded");
United States v. Lee, 358 F.3d 315, 324 (5th Cir. 2004) ("All other issues not arising out of [the
appellate] court's ruling and not raised in the appeals court, which could have been brought in
the original appeal, are not proper for reconsideration by the district court below."); S. Atl. Ltd.
P'ship of Tenn, LP v. Riese, 356 F.3d 576, 584 (4th Cir. 2004) (stating that "the mandate rule
forecloses litigation of issues decided by the district court but foregone on appeal or otherwise
waived") (quotation marks and citation omitted); United States v. Husband, 312 F.3d 247, 250
(7th Cir. 2002) ("[A]ny issue that could have been but was not raised on appeal is waived and
thus not remanded."); United States v. Stanley, 54 F.3d 103, 107 (2d Cir. 1995) (holding that
mandate rule prevents district court from revisiting issue not raised in initial appeal); United
States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993) ("The black letter rule governing this point is
that a legal decision made at one stage of a civil or criminal case, unchallenged in a subsequent
appeal despite the existence of ample opportunity to do so, becomes the law of the case for future
stages of the same litigation, and the aggrieved party is deemed to have forfeited any right to
challenge that particular decision at a subsequent date."); Williamsburg Wax Museum, Inc. v.
Historic Figures, Inc., 810 F.2d 243, 250 (D.C. Cir. 1987) ("Under law of the case doctrine, a
legal decision made at one stage of the litigation, unchallenged in a subsequent appeal when the
opportunity to do existed, become the law of the case for future stages of the same litigation, and
the parties are deemed to have waived the right to challenge that decision at a later time."); 5
Am. Jur. 2d Appellate Review ¶ 741 ("[A] court on remand may refuse to consider matters that
could have been appealed, but were not.")
8
The SCO Group, Inc. 578 F.3d at 1227.
9
Procter & Gamble Co., 317 F.3d at 1125 ("[W]hen the remand is general, however, the
district court is free to decide anything not foreclosed by the mandate.") (quotation marks and
citation omitted).
10
Huffman, 262 F.3d at 1133 (quoting Webb, 98 F.3d at 587).
***************************************
***************************************
IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
THE SCO GROUP, INC., a Delaware
corporation,
Plaintiff and Counterclaim Defendant,
vs.
NOVELL, INC., a Delaware corporation,
Defendant and Counterclaim Plaintiff.
_______________________
Case No. 2:04-CV-139 TS
MEMORANDUM DECISION AND
ORDER GRANTING IN PART AND
DENYING IN PART NOVELL'S
MOTION FOR SUMMARY
JUDGMENT ON SCO'S FIRST
CLAIM FOR SLANDER OF TITLE
BASED ON FAILURE TO
ESTABLISH SPECIAL DAMAGES
_________________________________
This matter is before the Court on Novell's Motion for Summary Judgment on SCO's
First Claim for Slander of Title Based on Failure to Establish Special Damages. In this Motion,
Defendant seeks summary judgment on Plaintiff's claim for slander of title. Defendant argues
that Plaintiff has failed to establish special damages, a necessary element of a slander of title
action. For the reasons discussed below, the Court will grant the Motion in part and deny it in
part.
1
I. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate "if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to a judgment as a matter of law."1 In considering whether
genuine issues of material fact exist, the Court determines whether a reasonable jury could return
a verdict for the nonmoving party in the face of all the evidence presented.2 The Court is
required to construe all facts and reasonable inferences in the light most favorable to the
nonmoving party.3
II. FACTUAL BACKGROUND
Simply stated, Plaintiff's slander of title claim is as follows. Plaintiff claims that it is the
rightful owner of the UNIX and UnixWare copyrights under the terms of the Asset Purchase
Agreement and various Amendments thereto. Defendant, in response, has disputed Plaintiff's
claims of ownership and has publicly claimed that it, not Plaintiff, is the true owner of the
copyrights in question. Defendant's claim of ownership and statements refuting Plaintiff's claim
of ownership are the slanderous statements alleged by Plaintiff.
Plaintiff argues that they have lost sales because of Defendant's alleged slanderous
statements. Plaintiff's claims of lost sales revolve around its SCOSource Initiative. Under the
SCOSource Initiative, Plaintiff sought to offer licenses to those it believed were infringing on its
2
intellectual property rights.4 Plaintiff claims that Defendant's alleged slanderous statements
concerning the ownership of the copyrights caused the SCOSource Initiative to fail. Specifically,
Plaintiff asserts that it was unable to enter into licensing agreements with various companies
because those companies refused to enter into licensing agreements as a result of the ownership
dispute.5 Plaintiff further argues that it was forced to accept lower prices from those who did
enter into agreements.
The majority of the evidence supporting Plaintiff's argument on this point comes from
the statements of those that were involved in the development and implementation of the
SCOSource Initiative.
SCO Vice President of Marketing Jeff Hunsaker testified that Novell's claims of
ownership of the copyrights impacted the SCOsource business. Mr. Hunsaker testified that,
because of Novell's claims, "the SCOsource licensing opportunities were killed, were negated
before they even really got off the ground."6 Mr. Hunsaker further testified:
We put together the SCOsource licensing agreement, and that gave us the
opportunity to go after new customers, anyone that uses Linux, and that's a huge
marketplace, to sell them that license. We had buyers, we had pipelines. And
then Novell, based on their timing and everything else, came out and said, "Sorry,
we own it." Then, "We don't own it," and then, "We do own it." And so
3
everyone that we dealt with said, "Sorry, guys. We're not interested in talking until you
get your act together and figure this out with Novell."7
Mr. Hunsaker specifically mentioned that, because of Novell's statements, Google, the
Pentagon, and HP stated "'Until you can resolve this, we are not interested in moving forward
with any SCOsource licensing.'"8 Mr. Hunsaker also testified about the frustrations that Larry
Gasparro, an SCOSource salesperson, was having: "he was frustrated with the claims that Novell
was making and how it impacted our business and opportunities, which were formidable for
SCOsource licenses, with some very large customers that were shot dead."9
Chris Sontag, head of the SCOSource division, testified:
[I]t started to become apparent in late 2003, early 2004, that we were
getting highly impacted by Novell's statements that people could easily use as an
excuse, the question on copyright ownership, as a reason why they would not
need to take what I consider an insurance policy on IP protection.
So that cloud that was created substantially impacted our licensing
opportunity and I believe ultimately, by this time frame, was substantially
impacting even the placeholder numbers or forecasted, you know, limited
forecasting numbers that were put in to future budgets.10
Mr. Sontag was asked if he believed "that SCOsource initiatives would have led to more
revenues if not for Novell's statements about copyrights?"11 To which he responded:
"Absolutely." Sontag further testified:
4
In discussion with potential licensees that I either had directly or for which I
received copies of correspondence or write-ups of the discussion that occurred
with other people such as the SCOsource sales people, I was aware of a number of
situations and times where the person was right in front of me saying, "Well,
there's questions about who even owns the copyrights so therefore I don't feel
like I need to take a license for your SCO UNIX intellectual property or the right
to use a license until that's resolved." And I would do my best to try and explain
that I thought it was a baseless set of statements on the part of Novell. But in may
cases, people I talked to would say, "Well, until its resolved, I'm still not going to
act upon this."12
When asked to identify specific companies that identified the copyright dispute as a
reason for not entering into a license agreement, Mr. Sontag was able to identify Morgan Stanley
or another Wall Street firm and Google.13
In his declaration, Mr. Sontag describes his negotiations with Hewlett Packard for a
SCOSource license.14Mr. Sontag stated that those negotiations were fruitful and that SCO and
HP were near a deal, but that negotiations began to fall apart in the fall of 2003.15 Mr. Sontag
states that "HP began mentioning Novell's claims, and the problems those claims created for the
deal."16 Sontag further states that "[t]his retrenchment by HP coincided precisely with the time
period in which I began to hear from other companies Novell was directly relaying to them its
claim that SCO did not own the UNIX copyrights."17
5
SCO CEO Darl McBride also testified in his deposition concerning the impact of
Defendant's statements on the SCOSource Initiative.18 As discussed in more detail below in
relation to his declaration, Mr. McBride testified that HP cited the copyright issue as an issue
which prevented HP from entering into a license.19 Mr. McBride also testified that there were
other instances in which the dispute over the ownership of the copyrights affected SCO's ability
to enter into SCOSource Licenses. Mr. McBride stated that "there were a number of customers
that came back and cited as problematic the Novell copyright issue."20 McBride specifically
cited Google as an example.21 Mr. McBride also stated that an investment bank (either Morgan
Stanley, Lehman Brothers, or Merrill Lynch), the Pentagon, Wyndham Hotels, Regal
Entertainment, and Just U.S.A. Sports as companies that cited the copyright dispute as an issue.22
Mr. McBride further stated "that the Novell claims were what eventually got us to just shutter up
the SCOsource licensing division for a number of years."23
In his Declaration, Mr. McBride discusses the negotiations between SCO and Dell for a
SCOSource license.24 Mr. McBride states that Dell's general counsel "expressed concern over
6
Novell's ongoing claim that SCO did not own the UNIX copyrights. Their interest in the deal
precipitously declined and the deal fell apart shortly thereafter."25
SCO General Counsel Ryan Tibbits testified that when SCO was working on the
SCOSource program, "the Novell copyright dispute was continually thrown back in our face."26
Mr. Tibbits testified that, in meetings with the Department of Defense, it was indicated that they
would have taken a license if not for Novell's actions.27 Instead, they stated "'As soon as
you--the issues are cleared up, come and see me and I'll have to do a deal with you.'"28 Mr.
Tibbits further identified a New Mexico power utility as an entity that refused a license in part
because of the copyright ownership issues.29 Mr. Tibbits identified Cisco as another company
that identified the ownership of the copyrights as an issue.30 Mr. Tibbits also identified Google
as a company that expressed concern over the copyright dispute.31
SCOSource salesperson Larry Gasparro testified that SCO's licensing program was
"dramatically" affected by Novell's claim of ownership of the copyrights.32
7
SCOSource salesperson Phil Langer testified that Novell's statements questioning SCO's
ownership of the copyrights negatively impacted his ability to sell licenses.33 Mr. Langer
testified that "all the licensees, potential licensees became very interested in, well, if you don't
own it, we're not going to by a license from you, which really, you know, put a hold on selling
licenses."34 When asked if he was unable to sell licences because of Novell's statements, Mr.
Langer responded: "Yes. I mean, it put a pretty big dampening effect on how we were able to
approach people when the intellectual property you're trying to license to them is in question of
ownership."35 Mr. Langer testified bluntly that "[o]nce the questioning of the ownership came
out, the pipeline was killed."36 Mr. Langer testified, specifically, that Regal Entertainment
Group, cited the dispute of ownership of the copyrights as a reason not to seek a license, stating
that "we can't buy your intellectual property because there's not clear title on it."37
Gregory Pettit, SCO's regional director of intellectual property licensing, testified that
Novell's claims of ownership made it difficult to enter into licenses with Raytheon and other
companies.38 Mr. Pettit identified the questions raised by Novell as causing "great difficulty, if
not impossibility, in selling any licenses[.]"39
8
The parties have both submitted numerous letters sent by various companies to SCO in
response to the SCOSource Initiative. Those letters provide some support for those statements
made by those involved with the SCOSource Initiative.40 Many of those letters mention the
ongoing dispute between SCO and Novell concerning the ownership of the UNIX and UnixWare
copyrights. Though, as Defendant points out, many of those letters also leave open the
possibility of further discussion once the dispute between the parties is resolved.
Plaintiff has also submitted declarations from two experts: Gary Pisano and Christine
Botosan. In his Declaration, Professor Pisano concludes
that Novell's conduct had a substantial impact on SCO's ability to sell the
SCOsource Intellectual Property License for Linux (also known as a "right to use"
or "RTU" license). It is my opinion that, but for Novell's actions, SCO would
have been able to sell significantly more SCOsource RTU licenses to the relevant
Linux market than it was able to sell after Novell's statements.41
Professor Pisano also opines
that even a court's determination that SCO owns the UNIX copyrights probably
would not restore SCO to the position they were in before Novell's statements.
As a practical matter, SCO's ability to sell SCOsource licenses in the future is
highly uncertain. Nearly four years have passed since Novell's first attack on
SCO's copyright ownership, and technology markets change rapidly. Based on
my expertise in high technology industries, and my research and analysis in this
case, I have no reason to believe that a court decision vindicating SCO's
ownership rights would allow SCO simply to recover its losses through
SCOsource sales at this time.42
In her Declaration, Professor Botosan states:
I estimate the financial impact of Novell's statements by using SCO's financial
records and internal projections, as well as several external analyst forecasts, to
9
calculate the projected revenue from SCOsource vendor licenses and SCOsource
right to use licenses. In order to calculate SCO's damages, I compare the
projected SCOsource revenue to the actual revenue realized by SCO over the
relevant time period, and then deduct incremental expenses to arrive at SCO's lost
profits. I have also relied upon the opinions of Professor Gary Pisano who has
studied the expected demand for SCOsource products had Novell's slander of title
not occurred. My forthcoming report will provide the details of my analysis in
support of my opinion that SCO's damages resulting from the slander of title by
Novell exceed $100 million.43
Another potential source of special damages are attorney's fees associated with removing
the cloud on the title. In connection with this, Plaintiff has submitted the Declaration of Paul T.
Moxley. Mr. Moxley provides the following opinions:
a. Substantial amounts of the work performed to date by SCO's attorneys
was necessary in order to eliminate the "cloud" on the title and undo the
harm caused by Novell's false assertions.
b. SCO has also incurred substantial legal fees and costs which were
necessary to defend against Novell's counterclaim for slander of title.
c. Substantial costs and expenses were incurred by SCO to obtain expert
opinions with respect to damages suffered, which are necessary to undo
the harm caused by the slander.
d. To the extent some of the fees, costs and expenses are related either to
other claims pursued by SCO or to the defense of other counterclaims
asserted by Novell, those amounts may be apportioned and segregated
from the amounts billed. That work is ongoing and my final analysis will
be included in my expert report.44
III. DISCUSSION
Defendant makes four arguments in its Motion for Summary Judgment. First, Defendant
argues that Plaintiff's allegations that the SCOSource Initiative was harmed by Defendant's
actions fails because Plaintiff cannot establish that Defendant was the cause of the failure.
Defendant further argues that, if Plaintiff prevails, it will be able to pursue its claim to royalties.
10
Second, Defendant argues that Plaintiff's argument concerning a diminution in stock price is not
a form of special damages. Third, Defendant argues that Plaintiff's claim for attorney's fees as a
form of special damages must be rejected. Fourth, Defendant argues that Plaintiff has not
produced evidence of any pecuniary loss based on its efforts to research and pursue copyright
registration.
"To prove slander of title, a claimant must prove that (1) there was a publication of a
slanderous statement disparaging claimant's title, (2) the statement was false, (3) the statement
was made with malice, and (4) the statement caused actual or special damages."45
A slander of title action requires proof of actual or special damages, presumed or general
damages are insufficient.46
The special damage rule requires the plaintiff to establish pecuniary loss that has
been realized or liquidated, as in the case of specific lost sales. This means that
general, implied or presumed damages of the kind formerly available in cases of
personal defamation are not sufficient as a ground for recovery in a disparagement
claim.47
"Special damages are ordinarily proved in a slander of title action by evidence of a lost sale or
the loss of some other pecuniary advantage. Absent a specific monetary loss flowing from a
slander affecting the saleability or use of the property, there is no damage."48" It is not sufficient
11
to show that the [property's] value has dropped on the market, as this is general damage, not a
realized or liquidated loss."49
A. LOST SALES
Both parties agree that lost sales constitute special damages. The disagreement here is
whether Plaintiff has presented sufficient evidence of lost sales and whether Defendant's actions
were the "direct and immediate" cause of those lost sales and whether those lost sales alleged by
Plaintiff are "realized and liquidated."
Based on the evidence set forth above, the Court finds that Plaintiff has presented
sufficient evidence of lost sales to survive summary judgment. The Court further finds that there
are genuine issues of material fact as to whether Defendant's actions were the "direct and
immediate" cause and whether those lost sales are "realized and liquidated." Therefore, the
Court must deny Defendant's Motion as it relates to lost sales.
B. STOCK PRICE
Defendant argues that Plaintiff's claim that Defendant's actions resulted in a diminution
of its stock price is not an appropriate claim for special damages. Plaintiff states that it is not
seeking the decline in its stock price as damages. The Court agrees that decline in stock price is
not an appropriate claim for special damages.50 Therefore, to the extent that Plaintiff is seeking
to recover its decline in stock price as a form of special damages, Defendant's Motion will be
granted.
12
C. ATTORNEY'S FEES AND COSTS
Under Utah law, attorney fees are "recoverable as special damages if incurred to remove
a cloud placed by the defendant on the title."51 However, when "attorney fees were not incurred
to clear title or to undo any harm created by whatever slander of title occurred, there [are] no
special damages."52 Defendant argues that Plaintiff's attorney's fees in pursuing this slander of
title action are not recoverable. Plaintiff argues that, although this is a slander of title action
rather than a quiet title action, "[t]he present action is the vehicle by which SCO's title will be
cleared."53
The Supreme Judicial Court of Maine succinctly stated the majority rule as follows:
We adopt the majority position that attorney fees incurred in removal of a cloud
on a title caused by a spurious and vexatious deed do constitute proof of special
damages in a slander of title action even in the absence of proof of an impairment
of vendibility. In doing so, however, we emphasize that the costs of litigation and
attorney fees in the action for slander of title itself cannot constitute the required
special damages. The prevailing party in a slander of title action may recover as
special damages those attorney fees and expenses incurred to remove the cloud on
the title but not those incurred to prosecute the slander of title action.54
In the instant action, there are two sets of attorney's fees: those associated with removing
the alleged cloud on the title of the copyrights and those associated with bringing the action for
slander of title. As set forth above, the Declaration of Paul T. Moxley states as follows:
a. Substantial amounts of the work performed to date by SCO's attorneys
was necessary in order to eliminate the "cloud" on the title and undo the
harm caused by Novell's false assertions.
13
b. SCO has also incurred substantial legal fees and costs which were
necessary to defend against Novell's counterclaim for slander of title.
c. Substantial costs and expenses were incurred by SCO to obtain expert
opinions with respect to damages suffered, which are necessary to undo
the harm caused by the slander.
d. To the extent some of the fees, costs and expenses are related either to
other claims pursued by SCO or to the defense of other counterclaims
asserted by Novell, those amounts may be apportioned and segregated
from the amounts billed. That work is ongoing and my final analysis will
be included in my expert report.55
To the extent that Plaintiff can segregate and identify those attorney's fees associated
with removing the cloud placed on the title of the copyrights, those fees would be considered
special damages. However, those amounts that were not associated with removing the cloud
placed on the title would not.
Defendant argues that courts refuse to award attorney's fees as special damages in cases
where the claim to settle ownership and the slander of title claim are brought in the same case.
Defendant's argument is without merit. For example, in Colquhoun v. Webber, a case cited by
Defendant, the plaintiffs had brought an action raising, among other claims, claims for both quiet
title/declaratory judgment and slander of title.56 The trial court granted plaintiffs summary
judgment and awarded special damages in the amount associated with the slander of title claim.57
The court on appeal reversed the damage award.58 The court found that the costs associated with
the action for slander of title did not constitute special damages.59 Rather, the court held that "the
14
prevailing party in a slander of title action may recover as special damages those attorneys fees
and expenses accruing from removing the cloud on the title."60 The trial court had awarded
special damages based on the cost of prosecuting the slander of title action.61 The court
emphasized that "[i]t is the costs of prosecution of the counts which cleared the Colquhouns'
title, i.e. the quiet title counts and the declaratory judgment count which are appropriately
characterized as "special damages" and for which Webber should bear liability."62 The court
vacated the damage award and remanded for a redetermination.63
Colquhoun shows that courts do, in fact, allow for recovery of special damages in cases
involving both slander of title and claims to settle the issue of ownership. This is the situation
before the Court. Here, both the issue of ownership of title and slander of title will be decided in
this action. Therefore, those attorney's fees and costs associated with removing the cloud from
the title are appropriately considered and may be recoverable as special damages.
The cases relied upon by Defendant are inapposite. C.P. Interests, Inc. v. California
Pools, Inc.,64 applies Texas law, which provides "that attorneys fees are not considered a form of
pecuniary loss and do not constitute special damages."65 This is clearly not the law in Utah. Lee
15
v. Washington Square Homeowners' Ass'n, Inc.,66 applying Georgia law, also takes a position
inconsistent with Utah law by stating that "[c]osts of litigation and attorney fees arising from
slander of title do not constitute . . . special damages."67 Hicks v. McLain's Bldg. Materials,
Inc.,68 also applies Georgia law which is inconsistent with Utah law.69 In Sannerud v. Brantz,70
the court found that there was insufficient evidence to support a claim in a defamation of title
action and noting that the Wyoming Supreme Court had suggested that attorney's fees were not
recoverable in a defamation of title action.71 This is not a defamation of title claim.
D. RESEARCHING COPYRIGHT REGISTRATIONS
Defendant's final argument is that Plaintiff has not produced evidence that it has incurred
attorney's fees in researching and reviewing the copyright registrations. Plaintiff has not
responded to this argument and it is, therefore, waived. Defendant's Motion will be granted to
the extent that Plaintiff is seeking special damages related to the researching and reviewing
copyrights that are not associated with those attorney's fees and costs allowable, as set forth
above.
16
IV. CONCLUSION
It is therefore
ORDERED that Novell's Motion for Summary Judgment on SCO's First Claim for
Slander of Title Based on Failure to Establish Special Damages (Docket No. 277) is GRANTED
IN PART AND DENIED IN PART as set forth above. The hearing set for February 4, 2010, is
STRICKEN.
DATED January 28, 2010.
BY THE COURT:
____[signature]___________
TED STEWART
United States District Judge
17
1
Fed.R.Civ.P. 56(c).
2
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Clifton v. Craig, 924
F.2d 182, 183 (10th Cir. 1991).
3
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986);
Wright v. Southwestern Bell Tel. Co., 925 F.2d 1288, 1292 (10th Cir. 1991).
4
See James Decl. Ex. 47 (letter from SCO to Linux users).
5
Docket No. 96 at ¶ 10 ("Novell's false and misleading representations that it owns the
copyrights have directly caused and continue to cause significant irreparable harm to SCO's
valuable UNIX and UnixWare copyrights, its business, and its reputation, and has caused third
parties to refuse to enter into license agreements with SCO relating to SCO's UNIX and
UnixWare business."); id. at ¶ 39(b) ("Potential customers have informed SCO that they will not
enter into agreements to license SCO's UNIX technologies because of the cloud surrounding
SCO's ownership of UNIX created by Novell's false public representations that it, and not SCO,
owns UNIX.").
6
Brakebill Decl. Ex. 31 at 151:19-21.
7
Id. at 162:17-163:2.
8
Id. at 206:4-14; see also id. at 229:8-13 (stating that Google, the Pentagon, and Hewlett
Packard were companies that cited Novell as a reason for declining a license); see id. at 230:3-
231:3.
9
James Decl. Ex. 62 at 232:4-8.
10
Id. Ex. 60 at 115:9-21.
11
Id. at 116:9-12.
12
Id. at 117:9-23.
13
Id. at 119:18-120:7.
14
Id. Ex. 80 at ¶¶ 8-15.
15
Id.
16
Id. at ¶14.
17
Id.
18
Brakebill Decl. Ex. 63; James Decl. Ex. 61.
19
Brakebill Decl. Ex. 63 at 130-34.
20
Id. at 135:10-11.
21
Id. at 135:20-136:4.
22
Id. at 137:2-19.
23
Id. at 219:16-18.
24
James Decl. Ex. 81 at ¶ 9.
25
Id.
26
Id. Ex. 59 at 113:1-2.
27
Id. Ex. 63 at 20:18-22.
28
Id. at 20:22-24.
29
Id. at 26:7-24.
30
Id. at 32:12-33:3.
31
Id. at 37:15-20.
32
Id. Ex. 56 at 330:5-7.
33
Id. Ex. 58 at 127:6-9.
34
Id. at 135:18-21.
35
Id. at 136:1-4.
36
Id. at 137:14-15.
37
Id. at 140:16-141:6.
38
Id. Ex. 57 at 167:12-15.
39
Id. at 167:21-25.
40
See Brakebill Decl. Exs. 48-53; James Decl. Exs. 48, 49, 86, 88.
41
James Decl. Ex. 71, ¶ 6.
42
Id. at ¶ 11.
43
Id. Ex. 87 at ¶ 6.
44
Id. Ex. 72 at ¶ 8.
45
First Sec. Bank of Utah, N.A. v. Banberry Crossing, 780 P.2d 1253, 1256-57 (Utah
1989).
46
Id. at 1257.
47
Id. (quoting W. Keeton, Prosser and Keeton on the Law of Torts, at 971 (5th ed.1984)).
48
Bass v. Planned Mgmt. Servs., Inc., 761 P.2d 566, 568 (Utah 1988).
49
Valley Colour, Inc. v. Beuchert Builders, Inc., 944 P.2d 361, 364 (Utah 1997).
50
See Computerized Thermal Imaging, Inc. v. Bloomberg, L.P., 2001 WL 670927, *3-4
(D. Utah 2001), aff'd, 312 F.3d 1292 (10th Cir. 2002).
51
Bass, 761 P.2d at 569.
52
Id.
53
Docket No. 307 at 39.
54
Colquhoun v. Webber, 684 A.2d 405, 411 (Me. 1996) (citations omitted).
55
James Decl. Ex. 72 at ¶ 8.
56
Colquhoun, 684 A.2d at 408.
57
Id. at 413
58
Id.
59
Id.
60
Id.
61
Id.
62
Id.
63
Id.
64
238 F.3d 690 (5th Cir. 2001).
65
Id. at 695.
66
615 S.E.2d 210 (Ga. Ct. App. 2005).
67
Id. at 214.
68
433 S.E.2d 114 (Ga. Ct. App. 1993).
69
Id. at 116.
70
879 P.2d 341 (Wyo. 1994).
71
Id. at 345.
|
|
Authored by: tyche on Thursday, January 28 2010 @ 05:53 PM EST |
Please indicate the correction and location for PJ
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
|
Authored by: tyche on Thursday, January 28 2010 @ 05:55 PM EST |
Here be Dragons, or at least off topic threads.
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
- Does apple iPad includes stolen IP ? - Authored by: dbmuse on Thursday, January 28 2010 @ 07:10 PM EST
- Microsoft profits rose 60% for the quarter - Authored by: Anonymous on Friday, January 29 2010 @ 02:53 AM EST
- Microsoft profits rose 60% for the quarter - Authored by: Anonymous on Friday, January 29 2010 @ 03:14 AM EST
- You aren't trying - Authored by: Anonymous on Friday, January 29 2010 @ 07:08 AM EST
- Windows 90%, Linux 1%, >>>MacOS 6% - Authored by: Anonymous on Friday, January 29 2010 @ 10:12 AM EST
- Linux 1%? - Authored by: tiger99 on Friday, January 29 2010 @ 12:58 PM EST
- Linux 1% - Authored by: Anonymous on Friday, January 29 2010 @ 05:31 PM EST
- Linux 1% - Authored by: tiger99 on Saturday, January 30 2010 @ 07:54 AM EST
- Linux 1% - Authored by: Anonymous on Saturday, January 30 2010 @ 01:16 PM EST
- Linux 1% - Authored by: Anonymous on Sunday, January 31 2010 @ 12:02 AM EST
- Linux 1% - Authored by: Anonymous on Sunday, January 31 2010 @ 01:53 AM EST
- Linux 1% - Authored by: Anonymous on Saturday, January 30 2010 @ 04:55 PM EST
- Linux 1% - Authored by: tiger99 on Saturday, January 30 2010 @ 06:06 PM EST
- Linux 1%? - Authored by: MadTom1999 on Sunday, January 31 2010 @ 01:15 PM EST
- Linux 1%? - Authored by: Vic on Sunday, January 31 2010 @ 01:55 PM EST
- Peaceful gorilla(?), Cretaceous dinosaur, or Cambrian sea scorpion? - Authored by: Winter on Friday, January 29 2010 @ 05:18 AM EST
- I disagree ... - Authored by: Anonymous on Friday, January 29 2010 @ 06:05 AM EST
- Lost monopoly? - Authored by: Anonymous on Friday, January 29 2010 @ 12:52 PM EST
- Microsoft profits rose 60% for the quarter - Authored by: PJ on Friday, January 29 2010 @ 11:29 AM EST
- Does the Gorilla matter any more? - Authored by: Anonymous on Friday, January 29 2010 @ 03:53 PM EST
- Nope. $1.7 b was deferred from previous 1/4 - Authored by: Anonymous on Friday, January 29 2010 @ 11:20 PM EST
- Samuel Alito may be on the board of the First Corporation to hold a Public Office - Authored by: Anonymous on Friday, January 29 2010 @ 09:55 AM EST
- Liberum veto - Authored by: Anonymous on Friday, January 29 2010 @ 11:20 AM EST
- Liberum veto - Authored by: PJ on Friday, January 29 2010 @ 12:06 PM EST
- Liberum veto - Authored by: Anonymous on Friday, January 29 2010 @ 12:57 PM EST
- Google Translate - Authored by: Anonymous on Friday, January 29 2010 @ 11:46 AM EST
- Law firm's piracy hunt condemned - Authored by: tiger99 on Friday, January 29 2010 @ 12:47 PM EST
- SCO Germany forced to pay fine - Authored by: Anonymous on Friday, January 29 2010 @ 02:04 PM EST
- Acer Linux netbooks - Authored by: tiger99 on Friday, January 29 2010 @ 03:14 PM EST
- Bank Sues Customer Hit by $800,000 Cyber Heist. Guess where? - Authored by: tiger99 on Friday, January 29 2010 @ 06:39 PM EST
- Do No Evil - Authored by: Anonymous on Friday, January 29 2010 @ 07:24 PM EST
- Google is evil - Authored by: Anonymous on Saturday, January 30 2010 @ 03:45 AM EST
- Net Neutrality - Authored by: maco on Friday, January 29 2010 @ 09:51 PM EST
- Danish government approves ODF - Authored by: Anonymous on Saturday, January 30 2010 @ 05:01 AM EST
- XP performance from SD card USB boot - Authored by: Anonymous on Saturday, January 30 2010 @ 07:27 AM EST
- WIN7's a DOG too - Authored by: Anonymous on Monday, February 01 2010 @ 07:27 AM EST
- Farewell To Solaris Express Community Edition - Authored by: tiger99 on Saturday, January 30 2010 @ 09:20 AM EST
- Ubuntu 10.04's Firefox will use Yahoo as default search engine - Authored by: Anonymous on Saturday, January 30 2010 @ 06:30 PM EST
- Off topic - Does this msn.com web page "fit" for other firefox users? - Authored by: Anonymous on Saturday, January 30 2010 @ 09:28 PM EST
- Google phases out support for IE6 - Authored by: tiger99 on Sunday, January 31 2010 @ 05:57 AM EST
- According to UK Government IE6 is as secure as other browsers - Authored by: TiddlyPom on Sunday, January 31 2010 @ 07:07 AM EST
- China steps up restrictions on media, IFJ report says - Authored by: tiger99 on Sunday, January 31 2010 @ 08:41 AM EST
- Judges Look to Kindles for Paperless Court - Authored by: Anonymous on Sunday, January 31 2010 @ 11:25 AM EST
- The United States of America v. Howard Morton - Authored by: Anonymous on Sunday, January 31 2010 @ 11:34 AM EST
|
Authored by: tyche on Thursday, January 28 2010 @ 05:57 PM EST |
Please indicate the title and, if it's scrolled off the screen, provide a link,
please
---
"The Truth shall Make Ye Fret"
"TRUTH", Terry Pratchett[ Reply to This | # ]
|
|
Authored by: Steve Martin on Thursday, January 28 2010 @ 06:05 PM EST |
Please post completed work here. If posting HTML'd text, please post in
"Plain Old Text" mode so that PJ can copy-and-paste the markups.
---
"When I say something, I put my name next to it." -- Isaac Jaffe, "Sports Night"[ Reply to This | # ]
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Authored by: Anonymous on Thursday, January 28 2010 @ 06:10 PM EST |
PJ, Thank you for all your time and effort. You should teach law to us
dummies..... oh you already are. Thank you again. My question is if the
Bankruptcy judge is letting the SCO/Novell trial to go on and the trial judge
just said that the Sun money ruling is ok, Can Novell demand the owed money
immediately?[ Reply to This | # ]
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Authored by: webster on Thursday, January 28 2010 @ 06:33 PM EST |
.
The judge had a choice. Rule on the logical merits or deny on procedural
grounds. He chose procedural grounds.
Novell could ask for a stay pending an interlocutory appeal to determine the
extent of the intent of the Court of Appeals for a jury trial. They could cite
the same authority in their motion regarding the 60(b) motions judgments being
reversible despite not appealing the issue. It would help if there are
differences from circuit to circuit on this.
They can argue that the District Court is not respecting the core of the
decision, i.e. that Kimball was wrong to decide that whether copyrights passed.
This decision and its consequences are now an open question for the jury. Judge
Stewart's denial, takes this question from the Jury in substantial part. Novell
didn't appeal Kimball's deciding this issue. By denying SCO's motion the Court
is using Kimball's reversed decision against Novell and denying THEM a jury
trial.
Stewart would probably not grant a stay pending appeal. The circuit would
probably not review interlocutorily, or if they did they would race it through
and deny it given the tenor of their leanings of late. [One has to review the
considerations for an interlocutory appeal in these circumstances. Something
not done here.]
This could lead to a messy trial. Can a judgment sustained on procedural
grounds be res judicata when another judgment contradicts it? Stewart will
spend a lot of time on this squabble throughout the trial even if it is just for
Novell to mark the record where this decision taints the trial.
It is much easier to deny rights procedurally in civil matters as opposed to
constitutional criminal matters since only money and not freedom is at stake.
~webster~
.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, January 28 2010 @ 07:32 PM EST |
Well, I guess we could have been seeing all this in the IBM case, which is the
main event, I think, and would be much more damaging. I just hope Judge Campbell
doesn't make this a tag team.[ Reply to This | # ]
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Authored by: Anonymous on Thursday, January 28 2010 @ 09:47 PM EST |
The excerpts from witness testimony are from sealed exhibits to the
declarations of Kenneth Brakebill [285] and Mark James [302]. This material
hasn't been made public before, and it shows the scale of the SCOsource
extortion scheme in 2003-2004. [ Reply to This | # ]
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Authored by: deck2 on Thursday, January 28 2010 @ 10:02 PM EST |
The way things seem to be going for Novell, it would appear that some force out
there has been able to get the fix in on this case. First the 10th Circuit
Appeals rulings and now this. All previous case law seems to be contradicted
and unreasoned judgments delivered. The judgments feel as if they are taking on
the guise of trying to provide support for a foregone conclusion. Copyright law
may even be overturned and uncopyrightable material will all of a sudden fall
under copyright. These kinds of judgments are scary.[ Reply to This | # ]
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- The Fix is In - Authored by: Anonymous on Thursday, January 28 2010 @ 10:49 PM EST
- The Fix is In - Authored by: Anonymous on Friday, January 29 2010 @ 12:01 AM EST
- The Fix is In - Authored by: Anonymous on Friday, January 29 2010 @ 12:35 AM EST
- TANJ - Authored by: Anonymous on Friday, January 29 2010 @ 03:18 AM EST
- The Fix is In - Authored by: wvhillbilly on Saturday, January 30 2010 @ 09:34 PM EST
- It's not about right or wrong - Authored by: Anonymous on Friday, January 29 2010 @ 01:23 AM EST
- The Fix isn't in - Authored by: The Mad Hatter r on Friday, January 29 2010 @ 01:24 AM EST
- The Fix is In - Authored by: Anonymous on Friday, January 29 2010 @ 06:12 AM EST
- The Fix is In - Authored by: Anonymous on Sunday, January 31 2010 @ 12:18 AM EST
- The Fix is *Not* In - Authored by: Tim Ransom on Friday, January 29 2010 @ 03:11 PM EST
- The name of the game ... - Authored by: Anonymous on Friday, January 29 2010 @ 05:59 PM EST
- The Fix is In - Authored by: Anonymous on Friday, January 29 2010 @ 06:10 PM EST
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Authored by: PolR on Thursday, January 28 2010 @ 10:05 PM EST |
I find it odd that as PJ says
SCO did appeal the
decision on slander of title, but I don't remember the appeals court saying
that was overturned
My confusion is how could a court have an
issue appealed before them and neither say it is overturned nor say it is
affirmed? Isn't this a messy situation? Then I went to the article linked by PJ
and found this list of issues on appeal. Is the list complete? Or were more
issues raised somewhere else?
(1) SCO's predecessor-in-interest,
The Santa Cruz Operation, Inc. ("Santa Cruz"), purchased the UNIX operating
system business from Novell under an Asset Purchase Agreement ("APA"). Did the
district court err in concluding, as a matter of law, that Santa Cruz did not
obtain the copyrights to the UNIX and UnixWare source code under the APA, but
only an implied license?
(2) Did the district court err in concluding, as a
matter of law, that if the APA did not itself transfer the copyrights, then SCO
is not entitled to specific performance, requiring the transfer of the
copyrights now?
(3) Did the district court err in concluding, as a matter of
law, that Novell has the right under the APA to force SCO to waive legal claims
against IBM for its breach of Software and Sublicensing Agreements that Novell
had sold to Santa Cruz under the APA?
(4) Did the district court err in
concluding that if Novell has the right under the APA to waive SCO's rights
against IBM, then Novell did not have to comply with the implied covenant of
good faith and fair dealing in exercising that right?
(5) Did the district
court err in concluding, as a matter of law, that Novell retained an interest in
royalties from SCO's 2003 agreement with Sun Microsystems ("Sun") and other
post-APA contracts related to SVRX technology?
Kimball holding
on slander of title is not on the list. Assuming the list is complete this is
why the court said nothing about it. It is taken care of by the footnote saying
Kimball's rulings not affecting the substance of the appeal are not being
addressed. I am curious to see how judge Stewart will deal with the situation.
We he send the slander of title for a retrial, in effect reversing Kimball's
ruling? Or will he correct the mistake? Logic says what is good for the goose is
good for the gander. If Novell can't get their motion because they didn't appeal
the issue then SCO slander of title should be handled the same.
[ Reply to This | # ]
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Authored by: Anonymous on Friday, January 29 2010 @ 01:48 AM EST |
In Stewart, we appear to have a judge who starts with a bias in favor of SCO.
Indeed, in ruling for SCO on a motion not brought before him, he appears to be
doing two jobs at once: 1. attorney for SCO, and 2. judge. In that order of
priority.
Well, let's look on the bright side. SCO and the US legal
system can't kill Linux; they can only kill in in the USA. The other 95% of the
world will not be affected. [ Reply to This | # ]
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- You're forgetting ACTA - n/t - Authored by: Anonymous on Friday, January 29 2010 @ 01:59 AM EST
- What are they gonna do ? - Authored by: Anonymous on Friday, January 29 2010 @ 05:56 AM EST
- Worse ... - Authored by: Anonymous on Friday, January 29 2010 @ 06:13 AM EST
- Touche! [n/t] - Authored by: Anonymous on Friday, January 29 2010 @ 02:54 PM EST
- No, I'm not forgetting it, I never knew what ACTA is/was - Authored by: Anonymous on Friday, January 29 2010 @ 07:12 AM EST
- You're also forgetting the Berne Convention. (n/t) - Authored by: Steve Martin on Friday, January 29 2010 @ 08:01 AM EST
- Why ACTA? - Authored by: Anonymous on Friday, January 29 2010 @ 04:45 PM EST
- Have you seen? - Authored by: Anonymous on Friday, January 29 2010 @ 06:08 PM EST
- Have you seen? - Authored by: Anonymous on Friday, January 29 2010 @ 10:33 PM EST
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Authored by: jmc on Friday, January 29 2010 @ 03:31 AM EST |
`I'm sure mine [memory] only works one way.' Alice remarked. `I can't remember
things before they happen.'
`It's a poor sort of memory that only works backwards,' the Queen remarked.
`What sort of things do you remember best?' Alice ventured to ask.
`Oh, things that happened the week after next,' the Queen replied in a careless
tone. `For instance, now,' she went on, sticking a large piece of plaster
[band-aid] on her finger as she spoke, `there's the King's Messenger. He's in
prison now, being punished: and the trial doesn't even begin till next
Wednesday: and of course the crime comes last of all.'
`Suppose he never commits the crime?' said Alice.
`That would be all the better wouldn't it?' the Queen said, as she bound the
plaster round her finger with a bit of ribbon.
Alice felt there was no denying that. `Of course it would be all the better,'
she said: `but it wouldn't be all the better his being punished.'
From "Through the Looking Glass" by Lewis Carroll[ Reply to This | # ]
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Authored by: Anonymous on Friday, January 29 2010 @ 07:41 AM EST |
So, my question is; if the appeals board remands the part about copyrights back
to trial. Can the judge arbitrarily decide to try the part about slander of
title too?
I mean, what are they going to do? Shoot him?[ Reply to This | # ]
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Authored by: PolR on Friday, January 29 2010 @ 10:09 AM EST |
I am reading back the article. I find that:
- Kimball has dismissed a
motion from SCO on slander of title. This doesn't resolve any issue. It means
they have to go to trial.
- Novell's motion on failure to plead special
damages has been mooted because of issues decided on other grounds. Aren't these
issues those that were remanded on appeals? The point is that Novell wanted to
get the motion decided because it is no longer moot. Therefore this was not
resolved either.
- I don't see where it says Novell's position on
slander of title would have been granted if it were not mooted.
This
judge is going the procedural way. Where is it in the procedure that says
slander of title has been decided in Novell's favor? There has to be a ruling
somewhere otherwise this judge will say the issue is unresolved and must go to
trial. I don't see such ruling in the quotes included in the article.
Did I
miss something?
[ Reply to This | # ]
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Authored by: Anonymous on Friday, January 29 2010 @ 11:26 AM EST |
"his dissent is happily useful in explaining to you that courts normally,
including the Supreme Court itself, won't decide a matter not properly brought
before it."
Then I daresay Justice Stevens needs to take a look around.
We have enough courts that will do exactly what he says they won't, scattered
all through the judicial system. SCO have hit the jackpot on that gamble, often
enough, to make the gamble worth-while. This isn't a matter of punctuation
errors or getting a date wrong; SCO counsel have persistently mis-represented
the facts of their cases, both in filings and in open court.
And, as if to prove my point, the judges in these venues have refused to hold
SCO and SCO's counsel accountable for this misconduct.
This is, to over-use the term, a travesty of justice. If there were any justice
to be had in this case, SCO would be in Chapter 7 by now. With the accounting
books opened, we'd see at least one lawyers disbarred, and a couple people
facing felony fraud and contempt charges.
As for the weaselly behavior of the RIAA, they'd be on trial for barratry and
mis-representation to the court.
Justice Stevens needs to come down from his ivory tower.
/rant off[ Reply to This | # ]
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Authored by: DaveJakeman on Friday, January 29 2010 @ 01:59 PM EST |
Remember watching "Dr Who" as a kid, peeping out from behind the sofa
because it was far too scary? Or if it wasn't too scary, that it *might have
been*, so one needed to be safely tucked away, out of reach of those nasty
creatures?
For me, being behind the sofa was still too close for comfort. I had to leave
the room and peep around the door frame. There were moments I couldn't bear to
watch and had to duck behind the wall, safely out of sight. I'd have to ask the
others if it was safe to look out yet, whilst gauging the thickness of the wall
between me and the Daleks.
That's almost what this feels like now. I'm not sure I really want to watch
this.
I'm sure we need Dr Who to Tardis in and fix this.[ Reply to This | # ]
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Authored by: Anonymous on Friday, January 29 2010 @ 02:09 PM EST |
I imagine another $5 billion ++ suit might be looming if SCOG fails. At some
time they have to say what they sold.[ Reply to This | # ]
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- Soon? - Authored by: Anonymous on Friday, January 29 2010 @ 04:57 PM EST
- Soon? - Authored by: tiger99 on Friday, January 29 2010 @ 05:12 PM EST
- Soon? - Authored by: Anonymous on Saturday, January 30 2010 @ 11:55 PM EST
- Soon? - Another viewpoint ... - Authored by: Anonymous on Saturday, January 30 2010 @ 01:06 PM EST
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Authored by: Anonymous on Friday, January 29 2010 @ 05:56 PM EST |
A rather different error still awaits correction – for its Shout Postcard
service, currently in the beta phase, SCO subsidiary Me Inc. has copied and
pasted a slightly outdated version of Facebook's terms and conditions with very
little modification. This 'oversight' is given added spice by the fact that
parent company SCO Group is embroiled in legal action against IBM in which it
claims Unix source code was copied by IBM programmers and pasted into Linux [--
] from which SCO hopes to derive licensing rights over Linux
installations.
http://shout.shoutpostcard.com/postcard/privacy.jsp?_sourcePage=
%2Fsend.jsp[ Reply to This | # ]
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Authored by: Anonymous on Friday, January 29 2010 @ 05:57 PM EST |
A rather different error still awaits correction – for its Shout Postcard
service, currently in the beta phase, SCO subsidiary Me Inc. has copied and
pasted a slightly outdated version of Facebook's terms and conditions with very
little modification. This 'oversight' is given added spice by the fact that
parent company SCO Group is embroiled in legal action against IBM in which it
claims Unix source code was copied by IBM programmers and pasted into Linux [--
] from which SCO hopes to derive licensing rights over Linux
installations.
http://shout.shoutpostcard.com/postcard/privacy.jsp?_sourcePage=
%2Fsend.jsp[ Reply to This | # ]
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Authored by: Anonymous on Friday, January 29 2010 @ 06:38 PM EST |
This leaves a bad taste in my mouth, and makes me suspicious. [ Reply to This | # ]
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Authored by: golding on Saturday, January 30 2010 @ 10:16 PM EST |
Once upon a time courts ruled using truth, based upon fact,
not opinion.
I see this as proving truth has nothing to do with the
courts anymore, just supposition and opinion ... therefore
providing the base for a society that does not trust the
courts at all.
Little wonder the public tends to shy away from being part
of the judicial system, up to, and including, being on
juries.
P.S. The above is a reduced version of what I originally
wrote, however, when I had finished, it was of the order of
two thousand words, a little long winded I thought. Suffice
to say this is short on details, but I think you should get
the gist of what I mean.
---
Regards, Robert
..... Some people can tell what time it is by looking at the sun, but I have
never been able to make out the numbers.[ Reply to This | # ]
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Authored by: Anonymous on Sunday, January 31 2010 @ 04:06 PM EST |
Decisions have been already made that when appealed, contradicted decisions in
other districts.
What if Justice Stevens and the Circuit appeals court continue to do stuff that
contradicts the other appeals courts?[ Reply to This | # ]
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